People v. Blackburn, Docket No. 78-929

• Citation: 94 Mich.App. 711,290 N.W.2d 61
• Decision Date: 09 January 1980
• Docket Number: Docket No. 78-929
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Leonard BLACKBURN, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 61

290 N.W.2d 61

94 Mich.App. 711

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Leonard BLACKBURN, Defendant-Appellant.

Docket No. 78-929.

Court of Appeals of Michigan.

Jan. 9, 1980.

Rehearing Denied Feb. 28, 1980.

Released for Publication April 4, 1980.

John D. Lazar, Hazel Park, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert Williams, Appellate Chief, Asst. Pros. Atty., Richard H. Browne, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and MacKENZIE and PIERCEY, ^* JJ.

PER CURIAM.

Defendant was convicted of three counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, by an Oakland County Circuit Court jury. He was sentenced to 60 to 90 years imprisonment on one count and life imprisonment on each of the other two counts, the sentences to run concurrently. From these convictions and sentences, defendant appeals as of right.

The first trial on these charges was dismissed when the jury indicated that it could not reach unanimous agreement and defense counsel moved for a mistrial. Now, defendant argues that his double jeopardy rights were violated by the second trial. Defendant maintains that there was no manifest necessity for the mistrial; instead, the trial court forced it by refusing to honor a legitimate jury request for a rereading of the transcript. Further, defendant contends that the fact that defense counsel approved and/or requested a mistrial is of no significance since the record fails to indicate that defendant himself played any role in consenting to his counsel's actions.

Once a jury is empaneled and sworn a defendant is placed in jeopardy. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 553 (1971), People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972). When a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. Unless he consents to the trial's interruption, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. People v. Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976).

The doctrine of manifest necessity allows a trial judge to declare a mistrial when a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), and People v. Williams, 85 Mich.App. 258, 262-263, 271 N.W.2d 191 (1978). We review this trial court determination, then, under an abuse of discretion standard, People v. Robertson, 87 Mich.App. 109, 273 N.W.2d 501 (1978).

The record of the first trial reveals that after deliberating for a short time the jury indicated they were "hopelessly deadlocked". The trial judge urged agreement if at all possible, with due respect for the rights of the people and the defendant, and sent the jury back for further deliberation. Shortly thereafter, the jury returned with a request for a rereading of the testimony of certain witnesses. The court replied:

"The answer to that is to read back only certain portions of testimony is not allowed, it is improper and the reason is that emphasizes certain portions of testimony and might de-emphasize others. To get the entire transcript it would take as long to prepare that as it took to try the case. Obviously, the reporter would have to type it and take more than a week to do it. I cannot have just portions of the testimony transcribed."

Thereafter, when the jury still could not reach agreement after a third round of deliberations, defense counsel moved for, and the trial court declared, a mistrial.

Reserving the question of the effect of defense counsel's motion, we hold the trial court abused its discretion in declaring a mistrial on manifest necessity grounds. Although the failure of a jury to reach a verdict has been held sufficient to establish a manifest necessity in some circumstances, see United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), such a ruling is not in order on the facts of this case.

In People v. Howe, 392 Mich. 670, 221 N.W.2d 350 (1974), a similar situation was presented. There, the jury requested that the testimony of two witnesses be read back. The trial judge refused this request on the basis that to give jurors bits of testimony puts too much emphasis on it. In reversing the trial court, the Supreme Court in Howe stated:

"A trial court must exercise its discretion to assure fairness and to refuse unreasonable requests; but, it cannot simply refuse to grant the jury's request for fear of placing too much emphasis on the testimony of one or two witnesses." 392 Mich. at 676, 221 N.W.2d at 352.

Just as in Howe, the instant trial judge did not indicate that he thought the request was unreasonable. Neither did he ask the jury to resume deliberations with the knowledge that their request would again be reviewed if the jury members continued to find it necessary to rehear certain testimony. Accordingly, just as in Howe, we find the trial judge abused his discretion by failing to properly consider what appears to have been a reasonable request on the part of the jury. See also People v. Bloom, 76 Mich.App. 405, 409, 257...